Access Australia Group Limited T/A Access Australia Group

[2017] FWCA 1529

[2017] FWCA 1529

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Access Australia Group Limited T/A Access Australia Group
(AG2016/5678)

ACCESS AUSTRALIA GROUP LTD ENTERPRISE AGREEMENT 2016

Health and welfare services
COMMISSIONER GREGORY	MELBOURNE, 16 MARCH 2017

Application for approval of the Access Australia Group Ltd Enterprise Agreement 2016.

Introduction

[1] An application has been made for approval of an Enterprise Agreement known as the Access Australia Group Ltd Enterprise Agreement 2016 (“the Agreement.”). The application is made under s.185 of the Fair Work Act 2009 (Cth) (“the Act”) by the Employer, Access Australia Group Ltd (“Access Australia”), who is a provider of disability employment and training services. It is a single enterprise agreement.

[2] After reviewing the application and the Employer’s Statutory Declaration, together with the terms and conditions contained in the proposed Agreement, the Commission sought clarification about a number of matters. These concerned, firstly, some of the entry-level pay rates, which appeared to be less than those contained in the relevant underlying Awards. An undertaking was subsequently proposed which dealt with these concerns. The Commission also sought further clarification about the provisions in the Agreement concerning work on Saturday, and when overtime work is performed. The application was subsequently set down for hearing to enable further evidence and submissions to be provided about these matters.

The Evidence and Submissions

[3] The issue concerning work on Saturday arises because the Agreement proposes that ordinary hours can be worked on Saturday between 8 a.m. and 9 p.m., whereas the underlying Awards, being the Educational Services (Post-Secondary Education) Award 2010, 1 the Labour Market Assistance Industry Award 2010,2 and the Social, Community, Home Care and Disability Services Industry Award 20103 provide for additional penalty rates to be provided when ordinary hours are worked on Saturday. The minimum applicable rate in the relevant Awards is 125% in the Educational Services (Post-Secondary Education) Award 2010. The other Awards provide for higher penalty rate entitlements when ordinary time work is performed on Saturday.

[4] Access Australia submits, in response, that out of a total of around 100 employees only two of its employees are currently ever required to work on Saturday. This involves occasional work on Saturday for half a day for one employee, and other occasional work on Saturday for a catering assistant, who already receives an additional penalty rate entitlement on those rare occasions.

[5] It also points to the fact that the Agreement contains a number of provisions that are more beneficial than those contained in the underlying Awards. In this context it highlights, in particular, the more generous sick leave entitlements and the family/personal leave provisions which can, for example, be substituted for annual leave when not otherwise taken. It also highlights other flexible work arrangements in the Agreement, together with the pay rates, which at most classification points are higher than those contained in the relevant Awards.

[6] Access Australia has also provided a further undertaking in regard to ordinary time work performed on Saturday. This would limit, in particular, the total number of ordinary time hours that can be worked on Saturday in any 12 month period to a maximum of 38 hours. Any hours worked on Saturday in excess of that amount in that same 12 month period would be required to be compensated on the basis of the applicable Saturday rate contained in the relevant Award.

[7] The second issue raised by the Commission concerned the provisions in regard to overtime. The Agreement provides that overtime is compensated on the basis of time off in lieu, calculated on the basis of one hour off for each hour worked. This can be contrasted with the provisions contained in the relevant Awards, which compensate overtime primarily on the basis of particular penalty rate entitlements.

[8] Access Australia again submits that the requirement to work overtime is not a regular feature of its operations and only occurs on limited occasions. In this context it made reference to the fact that in 2016 its total overtime costs in the year were only $7,500 in the context of a workforce of around 100 employees. It also proposed an additional undertaking, which provides that employees can, by mutual agreement, be paid for overtime worked on the basis of time and a half for the first 3 hours and double time thereafter. However, it also acknowledged that the reference to “by mutual agreement” mean that ultimately it can refuse to overtime being compensated in this way.

[9] However, it again highlights the fact that it has very little requirement for overtime hours to be worked. It also refers again to the other benefits in the Agreement that have been highlighted already, which it submits are more generous than those contained in the relevant Awards.

Consideration

[10] Section 186(1) of the Act requires that the Commission must approve an Agreement if satisfied that each of the various requirements in ss.186 and 187 are met. Section 186(2)(d) requires that the Commission must be satisfied the Agreement passes the “better off overall test” as part of these requirements. The nature of the “better off overall test” is dealt with in s.193(1). It states:

“193 Passing the better off overall test

When a non greenfields agreement passes the better off overall test

(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.” 4

[11] It is well established that the application of the test requires identification of the terms and conditions in the proposed Agreement that are more beneficial for the employees, and those which are less beneficial, with an overall assessment then being made about whether the employees would be “better off overall” under the terms and conditions in the Agreement, compared with those in the underlying Award(s).

[12] The recent Full Bench decision in Duncan Hart v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited T/A Coles and Bi Lo 5 also makes clear that the assessment must be carried out in a way that ensures each employee, and each prospective employee, would be “better off overall” under the Agreement. It is not sufficient for the Commission to simply be satisfied that a majority of the employees would be better off. The Full Bench made this clear in the following terms:

“However the application of the BOOT requires satisfaction, as at the test time, that each Award covered employee and each prospective employee would be better off overall under the Agreement.” 6

[13] Therefore, the Commission is now required to determine whether the terms and conditions contained in the proposedAgreement satisfy the requirements of this test when compared to those contained in the underlying Awards.

[14] The submissions provided by Access Australia make clear that work on Saturdays and additional overtime hours are not a regular part of its operation, and occur on limited occasions. These submissions were supported by the bargaining representatives who appeared in the proceedings.

[15] It is also noted that the Agreement does contain a number of additional benefits over and above those contained in the underlying Awards. These have been referred to already but particularly include the additional pay rates, the additional family and personal leave benefits, which can also be taken as annual leave if not otherwise used, and a range of other entitlements concerning flexible working hours.

[16] Access Australia has also provided a series of additional undertakings. These deal, firstly, with some issues raised about the entry-level pay rates. They also propose to limit the amount of ordinary time work that can be performed on Saturday ordinary time rates. They also provide in some circumstances for the payment of overtime penalty rates, rather than compensation by means of time off in lieu. Having taken all of these matters into account I am satisfied, on balance, that the employees are “better off overall” under the terms and conditions contained in the Agreement compared to those in the relevant Awards.

[17] The undertakings are contained in Attachment A. I am satisfied, firstly, that the undertakings will not cause financial detriment to any employee covered by the Agreement. I am also satisfied that they do not result in substantial changes to the Agreement. The undertakings are accordingly accepted and will now be taken to be a term of the Agreement as provided for by s.191 of the Act.

[18] It is also noted that the terms of the Consultation clause in clause 7 do not comply with the relevant statutory requirements. The model term is accordingly taken to be a term of the Agreement.

[19] I am otherwise satisfied that each of the requirements of ss.187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

The Agreement is approved and, in accordance with s. 54 of the Act, will operate from 23 March 2017. The nominal expiry date of the Agreement is 20 March 2020.

COMMISSIONER

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 Appearances:

M Langdon for the Applicant.

Hearing details:

2017.

Melbourne:

14 March.

Attachment A

 1   MA000075.

 2   MA000099.

 3   MA000100.

 4   Fair Work Act 2009 (Cth)s 193.

 5   [2016] FWCFB 2887.

 6 Ibid at [15].